Immigration FAQs

Q: Do I need an attorney to file my immigration application or petition?

A: No. Individuals can obtain immigration forms directly at USCIS. However, we do not recommend that individuals file their own application or petition for several reasons.

An application that is completed incorrectly may be denied by the immigration department and require the applicant to resubmit a new application and fees.

An application that is sent with incorrect fees may result in immigration processing delays and waste of time.

An application that contains misspellings may result in a delay, request for additional information, or denial.

An application that is not submitted with the required supporting documents may result in a delay, request for additional information or denial.

There are many reasons why an application and/or petition may be denied by USCIS. For this reason, it is important to hire a law firm that you can trust to file it correctly.

Q: There are several immigration law firms in the United States. Why should I choose the Law Office of David Nguyen, PC?

A: Attorney David Nguyen has worked for private law firms, non-profit organizations and multi-million dollar corporations. This means that he has experience working with diverse clientele and has acquired knowledge that can only be obtained by working in a wide array of legal settings.

Additionally, when law firms claim that they have worked on hundreds of immigration cases they are counting all of the cases handled by former and current attorneys. This means that the attorney that is currently handling your case may have only handled 1 or 2 cases.

Unlike other attorneys, Attorney David Nguyen has successfully filed hundreds of applications and/or petitions – and can help you with your immigration needs.

Q: I am on an H-1B visa. Can I take a vacation and maintain my immigration status?

A: Yes. Although immigration regulations have a “no benching” policy and requires employers to continue to pay the wage rate the H-1B holder in non-productive status – this does not apply if the H-1B holder is not working due to a request for a leave of absence, maternity leave, extended illness, etc.

It is important to maintain records indicating that any unpaid time off was due to a request from the H-1B holder. Please contact our law firm and we can assist you create a document retention program that will fit your needs.

Q: I am on an H-1B visa. I would like to switch employers. Do I have to notify my current employers?

A: No. Under the current immigration regulations you are not required to notify your current employer. However, it is important to maintain a valid H-1B immigration status the entire time you are in the U.S. For this reason, please contact our law firm and we can help you maintain a valid immigration status.

Q: I am on an H-4 dependent visa. Can I go to school and work?

A: Yes, you can go to school. However, there are only limited circumstances that will allow you to work on an Employment Authorization Document (EAD). For this reason, please contact our law firm to discuss your individual needs.

Q: I am a citizen of Australia, Canada, Singapore or Chile. Can I obtain work authorization to work in the U.S.?

A: Yes. Attorney David Nguyen has successfully procured work authorization for clients, based on E-3, TN-1 or H-1B1 visas.

Q: How can I prepare for the N-400 Naturalization Exam?

A: Our firm can provide you with sample questions that may be asked during the exam. Additionally, our law firm can conduct mock naturalization interviews with you to make sure that you are comfortable answering questions.

Applicants over 50 years old are exempt from certain exams. Please contact our office to discuss your options if you are over 50 years old.

Q: My H-1B petition was filed by an Internet Technology (IT) consulting company and received a Request for Additional Evidence (RFE) from USCIS. I heard that IT consulting companies have a higher likelihood of receiving RFEs. Is this true?

A: Maybe. IT consulting companies should provide strong evidence in their H-1B petition to reduce the likelihood of receiving an RFE. However, sometimes RFEs are received merely due to incorrect information/documentation, insufficient evidence or simply because the business is relatively small or new.

There is a real possibility that the RFE will cause the H-1B petition to be denied and the H-1B beneficiary may have to leave the U.S. and return to their home country.

Fortunately, Attorney David Nguyen has worked as Corporate Counsel – General and Immigration at several IT consulting companies. He has successfully responded to complex RFEs and will use this experience to assist you with your legal needs.

Q: I filed an application or petition myself, but I received Form 221(g) from a U.S. consulate abroad. What should I do?

A: Form 221(g) indicates that your application or petition is “pending for administrative processing.” Usually, the consular officer will provide you with documents required for the application or petition to be approved.

Our law firm has experience assisting clients with consular processing in order to avoid unnecessary delays and problems such as this.

Q: I am currently in the U.S. on an F-1 visa. Can I work?

A: It depends. This is considered a student visa. Individuals on F-1 visas can only work in limited circumstances. Please contact our office for an individual consultation to discuss your needs.

Q: I am currently in the U.S. on a B-1 visa. Can I work?

A: No. This is considered a visitor visa, which allows you to come to the U.S. for business or pleasure only. As a visitor, you can only engage in “legitimate activities” relating to the business or pleasure, so you cannot work while you are visiting.

For a complete list of activities that visitors can engage in while in the U.S., please contact our office for an individual consultation to discuss your needs.

Q: I am a legal permanent resident (LPR). Why should I consider applying for naturalization when I can renew my LPR status indefinitely?

A: Only U.S. citizens can vote in certain elections and some jobs are only available to U.S. citizens due to security reasons. For tax benefits, please contact a Certified Public Accountant (CPA).

Q: I would like to file for naturalization. I have two minor children, who are both under 18 years old. Do I need to file separate naturalization applications for them too?

A: No. Minor, lawful permanent resident children, who reside with his/her parent, become a U.S. citizen upon the naturalization of one of his/her parents.

Q: I entered the U.S. legally and I am married to a U.S. citizen. How long must I wait before I can apply to become a citizen?

A: If you are currently married to a U.S. citizen, you can apply for a permanent resident card (“Green Card”). After you obtain your Green Card, you can file for naturalization after three years.

Q: I entered the U.S. illegally and I am married to a U.S. citizen. I have two children that were born in the U.S. Can I obtain my Green Card through my wife or children?

A: Based on this information, the answer is no. However, there are several laws in “the works” that may help you obtain a legal immigration status. Please contact our law firm to ask about the DACA & DAPA executive orders.

Q: I came to the U.S. on a B-1/2 Visitor visa. My status has expired. I am not married to a U.S. citizen. Can I file for my Green Card?

A: In general, yes you can adjust to a Legal Permanent Resident. The normal processing time for an immigrant petition based on marriage to a U.S. citizen is approximately six (6) to nine (9) months. If you would like to work and/or travel while your petition is processing, you should inform your attorney.

Q: My foreign national spouse has two minor children. I would like to petition so that she can remain in the U.S. Can I petition her two children?

A: Yes, your stepchildren will qualify as long as the marriage occurred before they turned 18.

Q: I have not file my taxes. Can I file a petition for my spouse and/or children?

A: We recommend that you seek professional assistance to file your taxes and make payment arrangements if you owe any taxes. Having an IRS repayment plan will increase your chances of successfully petitioning for your immigrant relative.

Q: Can I get married through Skype, WeChat, or another video messaging application?

A: No, U.S. Citizenship and Immigration Services (USCIS) does not recognize proxy marriages, based on a ceremony over the internet. USCIS requires that both parties be present at the same time.

Q: I met my fiancee overseas. Can I petition her to come to the U.S. so we can get married?

A: Congratulations on your recent marriage plans! Yes, you can petition for your fiancee to travel to the U.S. on a K-1 fiancee visa, as long as, you have visited her/him within the last two (2) years and can provide proof (i.e. travel itinerary, plane ticket, lodging invoices, pictures, etc.).

Q: I am a student and I do not make the minimum amount required by the I-864, Affidavit of Support. What can I do?

A: Fortunately, there are two solutions to your problem. If your spouse is working, you can combine his/her income with yours. If your spouse is not working, you can combine your income with a relative or a friend, who is willing to sponsor your relative. (Please note that any joint sponsor must be a U.S. citizen or U.S. legal permanent resident, 18-years-old or older, must reside in the U.S., and complete an affidavit of support).

Q: I entered the U.S. illegally as a child and have never left the U.S. Can I obtain legal status in the U.S.?

A: You may be eligible for Deferred Action for Childhood Arrivals (DACA) classification. Under DACA, if an applicant: 1) was under 31 as of June 15, 2012; 2) continuously resided in the U.S. since June 15, 2007 until the present time; 3) was present in the U.S. on June 15, 2012; 4) had no lawful status on June 15, 2012; 5) is currently in high school or has obtained a high school diploma or GED, and 6) has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, s/he can apply for DACA classification.

Q: I am gay and/or lesbian. I married my partner overseas. Can I file an immigrant petition for him/her?

A: Yes. As it pertains to immigration laws, gays and lesbians are afforded the same opportunities as heterosexuals to apply for immigration benefits. Our office has helped gay and lesbian couples from all over the world, including: Mexico, South Africa, and Australia.

Q: I came to the U.S. on a marriage visa and was given a two (2) year conditional Green Card. I need to file USCIS Form I-751 to Remove the Conditions of Permanent Residence, but I am currently divorced. Do I have to leave the U.S.?

A: No, you do not have to leave the U.S. However, you are still required to complete USCIS Form I-751. Instead of filing jointly with your spouse, you will file it individually. You will need to prove that your marriage was entered in good faith (“bona fide”) even though it did not work out. The evidence required varies and is different from person to person.

Q: I entered the U.S. illegally as a minor and am now on Deferred Action for Childhood Arrivals (DACA) classification. I am not married to a U.S. citizen. Can I adjust my status and obtain a Green Card?

A: Maybe. Since you entered the U.S. illegally, you cannot adjust your immigration status inside of the U.S. Instead, you will be required to leave the country and reenter legally. There are certain travel restrictions for DACA holders, so please contact our office so we can help you obtain the required travel documents.

Q: If I join the U.S. military, can I apply for U.S. naturalization?

A: Yes, you can apply once you join the U.S. military. The application process may take anywhere from six (6) to nine (9) months. Once you are a citizen, you can petition for your parents and spouse (if they are overseas or require an immigrant petition).

Q: My wife/husband entered the U.S. illegally. Can I file an immigrant petition for her/him?

A: Yes, you can file an immigrant petition for her/him. However, you cannot file for an adjustment of status for her/him. Instead, s/he will have to leave the country and apply for an immigrant visa at a U.S. consulate or embassy abroad. If s/he are inadmissible because s/he has resided in the U.S. for over 90 days illegally, you will need to apply for a waiver. The waiver is permission from the government to allow your spouse to return to the U.S. after they leave the U.S. without fear that they will not be allowed to reenter based on their prior stay in the U.S.

Q: I came to the U.S. on a B-2 visitor visa. Can I apply for asylum?

A: Yes, you can apply for asylum. However, you must demonstrate two things: 1) You are unable or unwilling to return to your home country because you have been persecuted there in the past or have a well-found fear that you will be persecuted if you return; and 2) the reason you have or will be persecuted is connected to one of these: race, religion, nationality, membership in a particular group (i.e. women, gays/lesbians, political affiliation), or political opinion.

Q: I am married to a U.S. citizen or a U.S. permanent resident (Green Card holder). I am in an abusive relationship and my spouse will not file my immigration paperwork for me. What can I do?

A: It saddens our law firm to hear about your situation. Fortunately, you are not alone and immigration laws can help you obtain legal status in the U.S. The Violence Against Women Act (VAWA) will allow you to apply for immigration benefits. Your spouse will not be notified about your application so you can file without fear of retaliation.

Q: I came to the U.S. on a B-2 visitor visa. I have overstayed for 6 months. What will happen if I leave the U.S.?

A: If you leave the U.S., you will be considered inadmissible and will banned from returning for three (3) years. If you have lived in the U.S. longer than 6 months, but less than one (1) year, you should ask for voluntary departure. If you have been in the U.S. for less than one (1) year and an immigration judge grants you voluntary departure, there is no 3 year bar.

Q: I entered the U.S. illegally and have remained in the U.S. for over one (1) year. What will happen if I leave the U.S.?

A: You will be considered inadmissible and will be banned from returning to the U.S. for ten (10) years (unless you apply for a waiver, which is available in limited circumstances).

Q: I am a U.S. citizen. My friend recently passed away and has left behind two young children. Can I petition her children to live in the U.S.?

A: It is unfortunate to hear about your friend’s situation. First, you have to determine if the children’s native country is part of the Hague Adoption Convention. If they are, one solution is for you to live with the children for at least two years in their home country OR have the children be declared as an orphan in his/her country. Afterward, you can adopt them using an international adoption agency.

Q: I am visiting the U.S. from overseas. My country was recently impacted by an earthquake. Can I remain in the U.S. since it is dangerous in my home country?

A: Maybe. Foreign nationals from certain countries are allowed to apply for Temporary Protected Status (TPS). TPS allows foreign nationals to remain in the U.S., because of a dangerous situation in their home country. There are four general requirements for TPS: 1) you must be a national of a country designated for TPS; 2) you must file during the registration period or meet the requirements for late filing; 3) you must have been continuously present in the U.S. since the effective date of the most recent designation date of your country; and 4) you must have been continuously residing in the U.S. since the date specified for your country. (Please note that brief or casual departures outside of the U.S. may be acceptable).

Q: I do not live in the U.S. I would like to go to the U.S. to start a business. What is the easiest way to obtain a Green Card?

A: We recommend the EB-5 visa. If you are able to make a capital investment of $500,000 in a business located in a targeted employment area (TEA)/high unemployment area or $1 million, you may qualify for an EB-5 visa. This will allow you, your spouse, and your children (under 21-year-old) to come into the U.S. and receive Green Cards. These types of visas are complex since it involves capital investments requirements, job creation requirements, and lawful source requirements. Since every business is unique, it is best to speak to our firm regarding your specific needs.

Q: I want to live and start a business in the U.S. I do not have the capital for an EB-5 visa. Are there other business visa options for small businesses?

A: Yes. You may qualify for an E-2 visa. E-2 visas are available for nationals in countries that have a treaty of commerce and navigation, or a bilateral treaty providing for non-immigrant entries, with the U.S. The best part about the E-2 Visa is that there is no set amount for the capital investment. That being said, the investment must be considered “substantial” (and not minimal) based on the type of business or investment. These types of visas are complex since it involves capital investments requirements, job creation requirements, and lawful source requirements. Since every business is unique, it is best to speak to our firm regarding your specific needs.